I don’t have custody of my child. My ex wants to move away? Can they move away?
If you have a general judgment regarding custody, and you are the non-custodial parent, its not uncommon in this day of age, when folks move around the country a lot, to learn you ex wants to take your child and move. If the move affects whatever parenting plan you have, then you need to file a modification and ask for custody, or better yet, a motion to enforce and or modify the parenting plan you already have.
You might have a parenting plan that gives you parenting time every other weekend from Friday after school until Monday morning. You might have an after school visit with your child during the off week when you do not have weekend parenting time. If the proposed move by the custodial parent makes it impossible or very difficult to maintain that parenting plan, than you have a choice. Some folks want to file a modification and ask for custody. Essentially they are saying to the other parent, go ahead and move, but leave our child with me, and I’ll try to get the court to modify the order we currently have and give me custody. This is not always easy to do, because sometimes when push comes to shove, the other party will then say, ok, I”m not moving.
Additionally, in a move away case, the most important issue in the case becomes who has the burden of proof. If you ask for custody, the burden of proof is on you to show not only that a substantial change in circumstances has occurred since the entry of the last judgment, but that changing custody is in the best interests of the child.
If however, you seek to enforce the parenting plan you have, the burden of proof shifts to the party who wants to move to justify the move. The move has to be in the best interests of the child, not in the best interests of the person who wants to move. If they can’t meet their burden of proof they don’t get to move. Although its more complicated than this, and the facts of your case may change the way the court looks at it, the bottom line is always the best interests of the children.